Ineffective counsel claims prove to be ineffective

12.07.15

Losing litigants often seek targets to blame for their lack of success. The claimed culprits often are judges, juries, other parties, adverse counsel, the “system” and, with growing frequency, their own lawyers.

The blame-the-lawyer tendency seems to be increasing, particularly in criminal cases, where convicted parties are prone to assert claims of ineffective assistance of counsel after they lose their cases. They are often raised at post-trial proceedings, including direct appeals and post-conviction review.

A trio of litigants did so recently before the Minnesota Court of Appeals. As is typical of most of these contentions, they proved to be ineffective in persuading the appellate judges to overturn their convictions.

Alibi appeal

A Washington County man convicted of violating a Harassment Restraining Order (HRO) by driving past his ex-girlfriend’s home, despite a judicially imposed prohibition, unsuccessfully claimed that his attorney failed to effectuate his alibi defense in State v. Wuollet, 215 Minn. App. LEXIS 983 (Minn. App. Oct. 26, 2015)(unpublished). A Washington County District Court jury verdict rested largely on the testimony of the ex-girlfriend’s neighbor, who identified the defendant as the driver of the vehicle that went past the proscribed home in Hugo, although the defendant claimed that he was with his current girlfriend during the late afternoon period when the neighbors testified the incident occurred, coupled with similar alibi testimony from another friend.

Following his conviction, the defendant asserted three grounds on appeal: the jury should not have been allowed to take the HRO into deliberations room; they should have been allowed more time to develop forensic evidence from his cell phone to show his whereabouts at the time of the alleged offense; and his lawyer failed to develop evidence that would have buttressed his alibi. The appellate court rejected the first two arguments, ruling that the defendant had stipulated to the admissibility of the HRO, and the request for additional time for the forensic analysis was unsupported by “argument or authority.”

The ineffective counsel argument also failed because the police report indicated that the alleged violation occurred between 4:30 – 5:30 p.m. based on the neighbor’s testimony that the drive-by took place late in the afternoon. The defendant’s attorney elicited testimony that, if believed, would have established an alibi between roughly 4:00 p.m. and 6:00 p.m.

The contention the defense counsel failed to pin down the neighbor as to the specific time when the drive-by occurred was not objectively unreasonable. Even if the neighbor had testified with greater precision as to the time period, the jury still could have rejected the alibi testimony. The defendant’s argument “did not persuade [the court] … the result would have been different” but for counsel’s approach.

Concessions case

A man convicted in Kanabec County District Court of driving-related charges, including driving while intoxicated (DWI), was unsuccessful in challenging his attorney’s multiple concessions of guilt in State v. Cunningham, 2015 Minn. App. LEXIS 1008 (Minn. App. Nov. 9, 2015)(unpublished). The defendant’s attorney told the jury in closing argument that his client “was guilty of the gross misdemeanor [of] driving after cancellation” of his license, as well as “having [an] open container with him.” While stating that those two are the “easy ones,” the attorney staked his argument on refuting the two DWI charges as well as failure to carry proof of insurance, concluding by asking a jury to find him guilty on the gross misdemeanor of driving after cancellation of insurance and open bottle charges but not guilty on all of the other counts.

A concession of guilt may be presumptively prejudicial, entitling a defendant to a new trial. But that presumption does not apply in this case when the defendant has “acquiesced to the concession.” The defendant’s claim of ineffective representation due to the acknowledgment of guilt was rejected because he acquiesced to his attorney’s “concessions of guilt.”

Statements similar to those made in closing argument were presented to the jury in the opening statement, as well as the closing, and the defendant never objected to any of them. To the contrary, he ratified the concession of guilt, at least as to the gross misdemeanor offense of driving after cancellation of license, when he stated at sentencing that he “did not have a problem with admitting to that charge.”

Withdrawal wanted

A Dakota County man who pled guilty three years ago to terroristic threats was unsuccessful in a post-conviction appeal to set aside that conviction because of ineffective assistance of counsel in Avendano v. State, 2015 Minn. App. LEXIS 1013 (Minn. App. Nov. 9, 2015)(unpublished). The man, who entered the country illegally from El Salvador, was granted temporary status in this country under a federal program to assist illegal immigrants from that country. But he was subject to removal from the country, or deportation, after he pled guilty in February, 2012, to making terroristic threats to kill his live-in girlfriend. At the plea hearing, the El Salvadorian had dialog with his attorney in which the accused acknowledged that he was “aware that this plea may affect [immigration] status in some form or fashion” [and] there may be consequences arising from the plea. The prosecutor also had the man affirm that “as a result of your plea, one of those possible consequences could be deportation.” The trial court further told him that he was running the risk, “based upon your plea here today,” of being deported and, if that occurred, the judge “won’t withdraw this plea because of that decision of the Federal government.”

Notwithstanding these admonitions, the man three years later worked to withdraw his guilty plea after the Department of Homeland Security tried to remove him in deportation proceedings, based upon his the conviction. He claimed that his counsel failed to advise him that the terroristic threat plea could lead to “mandatory deportation.”

The denial of post-conviction request for withdrawal of the plea by the Dakota County District Court was affirmed. The appeal relied upon Padilla v. Kentucky, 559 U.S. 356 1473 (2010), in which the Supreme Court held that the Sixth Amendment right to counsel requires that a non-citizen defendant be informed of the deportation risk associated with pleading guilty. But the required “content of the advice” required varies, on the basis of which statute is invalidated by a particular guilty plea. When the consequences are not clear, defense counsel is not required to do more than “advise” a non-citizen client that pending criminal charges may carry a risk of deportation, compared to a situation in which deportation consequences are “truly clear” … simply from reading the text of the applicable laws,” which gives rise to a duty to give correct advice about the probability of deportation.

The court rejected defendant’s argument that making terroristic threats clearly gives rise to a presumption of deportation under the applicable statute, the Immigration Nationality Act, which states that terroristic threats fall in a category of a crime involving moral turpitude, which creates a presumption of deportation under 8 U.S.C. § 1227(a)(2)(A)(i).

Unlike the Padillacase, the deportation consequences of a terroristic threat plea were not “succinct and straight forward,” and his defense attorney could not have ascertained the deportation consequences of entering that plea, simply from reading the text of the statute, as was the much clearer case in Padilla. The lack of clarity of that issue was reflected in the Federal court deportation proceedings, Avendano v. Holder, 770 F.3d 731 (8th Cir. 2014) in which the Eighth Circuit Court of Appeals was “grappling with the issue of whether [the] conviction of terroristic threats fell within the moral turpitude provision of the statute. Two of the judges thought so, but one of them disagreed in dissent. This disparity indicates that the deportation consequences were not so clearly known that counsel was remiss in not telling him that he would most likely be deported if he pled to the offense.

Because the immigrant was repeatedly informed of the risk of deportation, his attorney’s performance was not objectively and unreasonable. Therefore, the trial court did not abuse its discretion in rejecting his effort to withdraw his guilty plea.

This trio of cases reflects that convicted criminals raising ineffective assistance of counsel claims have a dickens of a time overturning their convictions.